Mr X and Tipperary County Council

Whether the Council was justified in accordance with various sections of the FOI Act in deciding to refuse access to records about the applicant's waste facility including his application for a permit

Conducted in accordance with section 34(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 15 January 2014, the applicant made a request to the Council under the FOI Act. Following receipt of a fee and some clarification of what was being sought, the Council acknowledged that the FOI request was received on 27 March 2014. The Council also acknowledged that the applicant had identified groups of records, concerning his waste facility, as follows: (1) information relating to the applicant's waste permit application; (2) engineers' notes in relation to waste water; (3) notes on the process and decision to remove the applicant's name from a permit application; (4) notes relating to a decision of the Council to carry out a raid on the applicant's premises in November 2011; (5) a copy of the search warrant relating to the raid; (6) notes the Council had received from Cork County Council about an allegation of illegal waste activity; (7) information on the procedures and protocols followed by the Council when it carried out the raid on the applicant's premises; (8) a copy of a staff manual (in particular, concerning "fair procedures") used by the Council when carrying out the raid.

On 24 April 2014, the Council made its decision with reference to the eight points specified above. The Council refused access to items 1, 2 and 3 and said that those records had been the subject of a previous FOI request from the applicant. The Council stated that copies of the records at 1, 2 and 3, "which were not regarded as exempt" had been forwarded to the applicant's solicitors on 10 December 2013. The Council refused access to records 4, 6, 7 and 8 under the provisions of section 23(1)(a)(i) and(ii) and section 26(1)(a) of the FOI Act. In refusing access to record 5, the Council did not specify the relevant section in its decision letter; it is clear however that the record was refused under the provisions of section 10(1)(a) of the FOI Act.

A request for an internal review was received by the Council on 7 May 2014. In its communications with this Office, the Council stated that it had spoken to the applicant in an effort to establish the precise nature of the records to which he referred in his internal review request. The Council then made a decision on 23 May 2014 and identified five files which held records relevant to the applicant's "previous request and decision". The Council refused access to records under section 10(1)(a) and sections 22(1)(a), 23(1)(a)(i) and (ii), 26(1)(a) and 28(1) of the FOI Act. In August 2014, however, the Council identified a sixth file which it considered relevant to the applicant's request. This file contained eight records, all of which were released.

On 19 January 2015, Edmund McDaid, Investigator of this Office, wrote to the applicant to confirm the scope of the review. The applicant was invited to respond to the letter but there is no record of a response from him. Mr McDaid also asked the Council for clarification of the scope of the review. In its response, the Council confirmed the status of certain records and released a further ten records to the applicant. As a result, the section 23(1)(a)(i) and (ii) exemption previously relied on by the Council is no longer relevant, as all records refused under that section have now been released. In April 2015, Mr. McDaid wrote again to the applicant to provide him with a opportunity to consider the Investigator's view on this review. The applicant did not respond. Consequently, I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the submission of the Council and to correspondence between the applicant and the Council. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 and 2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in deciding to refuse access to certain records about the applicant's waste facility, including his permit application.

Findings

Section 10(1)(a) - Item 5
The Council's position is that it does not hold a record which the applicant described as a "search warrant used to carry out the raid on the waste facility in November 2011". Section 10(1)(a) of the FOI Act provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if-

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"

The Commissioner's role in a case such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The Commissioner's understanding of his role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on the website of this Office at www.oic.ie).
The Council stated that the raid on the applicant's premises, carried out in November 2011, was a multi-agency raid instigated and coordinated by An Garda Síochána. The Council also stated that it did not seek a search warrant and that it is not its practice to use search warrants, as its enforcement staff are authorised to enter lands for the purposes of carrying out inspections in accordance with the Waste Management Acts 1996 and 2013. The Council said "beyond doubt, that no such record exists in this authority". I am satisfied that the Council has taken all reasonable steps to locate the record and/or to explain its position that it holds no such record and I find that section 10(1)(a) of the FOI Act applies.
Section 22(1)(a) - File WP-TN-132 - records 77, 78 and 85 and File WFP-TN-11-0006-01 - records 47-51, 55-58 and 61-66(a).
Section 22(1)(a) of the FOI Act provides that a request shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. This provision does not require the consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
confidential communications made between a client and professional legal adviser for the purpose of obtaining and/or giving legal advice; and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated or pending litigation.
In considering whether a record would be exempt from production in a court on the grounds of legal professional privilege, I must ignore whether or not proceedings took place and bear in mind that legal professional privilege resides with the client. I must simply consider whether the public body, in the event of court proceedings, would succeed in withholding the records on the grounds of legal professional privilege.
It is clear from my examination of them that the records listed above concern requests for, and receipt of, legal advice by the Council. For clarity, I note that record 85 was initially exempted under another provision but that the Council subsequently granted access to part of it and redacted some information on the basis of section 22(1)(a). I am satisfied that the information in those records qualifies under one or both limbs of the definition of legal professional privilege and I find that section 22(1)(a) applies to exempt these records.
Section 23(1)(b) - File WP/462 - record 9, and File WP-TN-43 - records 25, 26 &amp; 27
While the Council relied on section 26(1)(a) of the FOI Act to exempt the above records, I consider that section 23(1)(b) is the more relevant exemption in the circumstances. The applicant and the Council have been informed of this approach.

Section 23(1)(b) of the FOI Act provides that access to a record may be refused where, in the opinion of the head, its disclosure could reasonably be expected to:-

"reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence,".

This exemption is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the civil law, by providing information which might assist such bodies or agencies to perform their functions more effectively. For section 23(1)(b) to apply, three specific requirements must be met. The first is that release of the withheld information could reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given to the public body in confidence, while the third is that the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

First requirement

Having examined the contents of the records, which comprise details of complaints recorded and dealt with by the Council, I am satisfied that their release could reasonably be expected to reveal or lead to the revelation of the identity of a person who has given information to the Council. I find that the first requirement under section 23(1)(b) is met.

Second Requirement

The second requirement of section 23(1)(b) is that the person whose identity may be revealed through the release of the information at issue must have given information to a public body in confidence. The Council stated that its practice in operation at that time was that staff would ask complainants if they wanted their identities to be kept confidential. I accept that it is important for the Council to be in a position to receive such necessary information in confidence from members of the public. I accept the Council's position that in this case the information provided to it by the complainants was given in confidence and on the basis that it should be treated as such. Accordingly, I consider that the second requirement under section 23(1)(b) is met.

Third Requirement

The third requirement of section 23(1)(b) is that the information received by the public body relates to the enforcement or administration of the civil law. The Council stated that the information received related both to its enforcement functions under the provisions of the Waste Management Acts 1996 and 2013 and to the control of noise. Therefore, I am satisfied that the third requirement for section 23(1)(b) of the FOI Act is met.

Having found that each of the three requirements is met, I find that the records listed above are exempt under section 23(1)(b) of the FOI Act.

The Public Interest
Section 23(1)(b) of the FOI Act is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would, on balance, be better served by the release of the information at issue than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain circumstances arise. Those circumstances are where the records disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or the merits of any programme for prevention, detection or breaches of the law. I am satisfied that no such circumstances arise in this case, and that section 23(3) does not apply.

Section 28(1) - File WP-TN-15 - record 45; File WP-TN-132 - records 92, 101, 112, 113 and 114 and File WFP-TN-11-0006-01 - record 54
The Council withheld parts of the above records on the basis of section 28 of the FOI Act. The information at issue relates mainly to redacted names and contact details of persons (not staff members of public bodies) other than the applicant. The applicant has been given access to the remainder of these records. Where the details involve businesses whose information would not comprise personal information, these references appear to be unconnected to the applicant's facility and I am taking it that his FOI request did not cover records concerning the Council's dealings with companies other than his own.

Section 28(1) of the FOI Act provides that a public body shall refuse a request where access would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by it as confidential.

I find that granting access to the redacted names would involve the disclosure of personal information relating to third party individuals and that section 28(1) therefore applies. As a general rule, personal information about an individual can be released to a third party without the individual's consent only where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. Although section 28(2) of the Act provides for certain exceptions to this rule where, for instance, "disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual", I am satisfied that none of the exceptions is applicable in this case. For the sake of completeness, I also note that I see no basis for concluding that granting the applicant's request would be to the "benefit" of the third party individuals involved (section 28(5)(b) of the FOI Act refers).

On the matter of where the balance of the public interest lies (section 28(5)(a) refers), I note that the FOI Act recognises a very strong public interest in protecting privacy rights and this is reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. In this case, I am aware of no public interest in granting access to the personal information at issue that would outweigh the public interest in upholding the privacy interests of the third parties concerned. Accordingly, I am satisfied that the Council's decision to refuse access to the details of persons other than the applicant was justified under section 28(1).

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Council in this case.

Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.